DR. GHOUS MUHAMMAD, J.,---The petition was filed against commercialization of and construction on Plot No.3, Modern Cooperative Housing Society, Shaheed-e-Millat Road, Karachi, (hereafter referred to as "the premises") signed by the petitioner through Mr. Jawaid Siddiqui, Advocate. A Vakalatnama was also signed by the petitioner authorising M/s. Javed Law Associates to appear, act, prosecute etc. The petition. It is pertinent to note that the Vakalatnama bears the signatures of both Mr. Jawaid Siddiqui, Advocate, and his associate Mr. Abid Shirazi, Advocate. The said Vakalatnama also explicity reserves the right of the counsel to, inter alia, compromise the proceedings. In this backdrop a statement dated 24-6-1996 was filed on behalf of the petitioner bearing signatures of Mr. Abid Shirazi for the petitioner and Mr. Mubarak Hussain Siddiqui, Advocate, for respondent No.6, the builders in this case, to the effect that due to commercialization of plot and regularization of construction thereon by competent authority the petitioner does not press the petition and pending applications provided the respondent No.6 does not encroach upon the open spaces towards the petitioner's plot beyond the limits shown in the composition/regularization plan. Accordingly, this Court comprising my learned brother A.I Muhammad Baloch, J. And myself i.e. Dr. Ghous Muhammad, J. Disposed of the petition through order dated 24-6-1996 in terms of the said joint statement/compromise.
2. That thereafter the petitioner through Mr. Sohail Hameed, Advocate, moved C.M.A. No.2629/96 (hereafter also referred to as the "listed application") under section 151 of the C.P.C. For recall of our earlier order dated 24-6-1996. In the said C.M.A. No.2629/96, the petitioner contended that M/s. Jawaid Siddiqui and Abid Shirazi had no authority to withdraw or compromise the petition and the same had been done without any intimation to the petitioner. Fraud, misrepresentation and collusion were also vehemently alleged against the two learned counsel i.e. M/s. Jawaid Siddiqui and Abid Shirazai. The learned counsel now appearing for the petitioner i.e. Khalid Hai-need has also moved other interlocutory applications for stay. However, this Court comprising the Hon'ble Chief Justice and Rana Bhagwan Das, J. Was pleased to observe through order dated 9-7-1996 that the request in other interlocutory applications could not be entertained till such time C.M.A.
No.2629/96 for recall of the compromise order was first disposed of. The said learned Bench on 16- 7-1996 was also pleased to mark the case to the present Bench since the order dated the 24-6- 1996 i.e. The subject-matter of recall/review was passed by this very Bench. At this stage Mr. Muhammad Farogh Naseem, Advocate, entered his appearance on behalf of the respondent No.6.
3. M/s. Mubarak Hussain Siddiqui and Mr. Muhammad Farogh Naseem, Advocates at the very outset have correctly submitted that this Court at this stage could not go into the merits of the matter till such time the petitioner's counsel made out a case for recall of order dated 24-6-1996.
Accordingly, we asked Mr. Khalid Hameed to confine his arguments only on the listed application requesting recall of the compromise order.
4. We have heard the arguments of both Mr. Khalid Hameed and Mr. Muhammad Farogh Naseem and perused the record and pleadings. Mr. Khalid Hameed has basically raised the following contentions:---
(i) that the petitioner had at no point of time given any specific authority to M/s. Jawaid Siddiqui or Abid Shirazi, Advocate to withdraw or compromise the petition. In this respect the learned counsel has tried to convince us that an application for early hearing was moved by Mr. Abid Shirazi during vacations when there was no apparent ground for urgency and furthermore had the petitioner truly accorded her consent to an amicable settlement a proper application for withdrawal under Order 23 of the C.P.C. Ought to have been moved;
(ii) that in light of above fraud, collusion and misrepresentation on part of M/s. Jawaid Siddiqui and Mr. Abid Shirazi was more than obvious;
(iii) the fact that fraud, collusion and misrepresentation had taken place was apparent from the position that there was an inconsistency between the counter-affidavits filed by the respondent No.6 and Abid Shirazi to the listed application filed by the petitioner. The inconsistency alleged being that in the counter-affidavit filed by Mr. Abid Shirazi it has been stated that since April 1996 the petitioner's grandson had been in contact with Mr. Jawaid Siddiqui and there was discussion between them to withdraw the petition due to commercialization and regularization by the competent authority; whereas in the counter affidavit filed by the respondent No.6 it has been alleged that the decision to withdraw had been taken at the spur of the moment.
(iv) that an affidavit had been filed by the petitioner's grandson i.e. Muhammad Zubair Elahi refuting the allegations in the counter affidavit filed by Mr. Abid Shirazi. Furthermore no counter- affidavit to the affidavit of Mr. Zubair Elahi had been filed in view whereof his version had to be accepted.
5. In reply Mr. Muhammad Farogh Naseem submitted to the following effect:---
(i) that the Vakalatnama signed by the petitioner in favour of M/s. Jawaid Siddiqui and Abid Shirazi explicitly reserves the right of counsel to enter into a compromise. Furthermore, even if there was no such specific stipulation the counsel had the power to withdraw/compromise on behalf of his client. In this respect he has placed reliance upon:
(a) Nasir Muhammad Khan v. Fazal and others PLD 1965 Lahore 434 where a learned Single Judge of the Lahore High Court while interpreting Order 3, Rule 1 of the C.P.C. Was pleased to observe that a pleader enjoys unfettered powers acting on behalf of his clients which includes the power to abandon issues. In this case the Court while relying upon a number of cases from Indian jurisdiction and the Privy Council was pleased to hold as follows:--- "I have seen the power of attorney as well. It is expressly mentioned in the same that anything done by the Advocate would be acceptable to the defendant as if they had done it themselves. Even if no such power had been given in the power of attorney the mere fact that Mr. Sultan Ahmed had appeared on behalf of the defendants he would be fully competent to abandon any issue in his discretion.
(See p.437)
(b) Jhang Bahadur d 3 others v. Muhammad Pervaiz and 3 others 1979 CLC 337 where a learned Single Judge of the Lahore High Court held that a Vakalatnama clearly authorizes counsel to make any statement or enter into any compromise on client's behalf;
(c) Mobile Eye Service of Pakistan, Karachi v. Director, Social Welfare Registration Authority, Government of Sindh PLD 1992 Karachi 183, where a Division Bench of the Sindh High Court held that where a counsel had entered into a compromise on behalf of a party without being specifically authorised to do so by such party, the matter would be purely between the counsel and the party, while the compromise could not be set aside merely on the ground that the counsel had no authority to do so;
(d) Adil Jafar v. Farida Muhammad A.I 1993 MLD 1862 where Nasir Aslam Zahid, C.J., as he then was, sitting singly decided the case. The main dispute was between the petitioner and the contesting respondent. The counsel for the latter gave in writing that the petition be allowed as prayed. It was held that the counsel had specific powers to compromise the matter as per the Vakalatnama given to him by the parties. Petition was thus allowed in the circumstances.
(e) Muhammad Saeed v. Indico Paint Colour and Varnish Co. PLD 1995 Karachi 25, in which case the Court refused to recall an order allowing withdrawal of appeal passed in pursuance of a statement given by the counsel for the tenant in writing on grounds that the counsel had such powers while there was nothing to establish the alleged fraud or misrepresentation against the counsel;
(f) Azhar Asia Shipping Agency v. Ghaffar Corporation, PLD 1996 SC 213, where the Hon'ble Supreme Court has categorically observed that a compromise entered into by a counsel on behalf of a party would bind such party and also that the authority of a counsel to enter into such a compromise could not be revoked by the mere fact that another counsel had been engaged by the party;
(ii) the other argument of Mr. Muhammad Farogh Naseem is that the petitioner has not been able to make out a case of fraud, collusion and misrepresentation against M/s. Jawaid Siddiqui or Abid Shirazi, Advocates. The learned counsel has referred to paragraphs 8 to 10 of the affidavit in support of C.M.A. No.2629/96 for the point that on petitioner's own showing the entire stance is based upon conjectures and surmises, while there is nothing concrete available with the petitioners. In the said paragraphs 8 and 10 the petitioners have averred as under:--- "8. The petitioner under the circumstances is unable to comprehend the said attitude and action on the part of her advocate and can only come to one conclusion that her advocate/advocates had struck some sort of deal with the builders to have the stay vacated.
10. That the petitioner through her grandson has also come to know that the respondent No.6 and their representatives visited the office of the petitioner's Advocate on a few occasions and is therefore at a loss to know what business they had at the petitioner's counsel's office. "
While citing the above parts of the petitioner's pleadings. Mr. Muhammad Farogh Naseem has submitted that fraud cannot be proved on mere suspicion and only pleadings are not enough. He has stated that to establish fraud strong, independent and cogent evidence has to be brought on record, while any circumstantial evidence has to be excluded. He has further stated that to establish fraud specific items, date-wise have to be particularized. In this respect he has placed reliance upon:---
(a) Syenska Hadelsbanken v. M/s. Indian Charge Chrome and others 1995 PSC 1276;
(b) Dur Muhammad v. Abdul Sattar 1996 CLC 1596
(c) Pakistan Banking Council v. A.I Mohtaram Naqvi 1985 SCMR 714;
(d) Shamir v. Faiz Elahi 1993 SCMR 145;
(e) Philip Morris Incorporated v. Lakson Tobacco Co. Ltd. 1992 MLD 677;
(f) Muhammad Abu Muchha v. Haji Mukhlesur Rehman PLD 1968 Dacca 543;
(g) Muhammad Azim v. Pakistan Employees' Cooperative Housing Society PLD 1973 Note 84 at p.119.
(iii) The third argument of Mr. Muhammad Farodh Naseem is that questions of fraud cannot be decided in a Constitutional petition being disputed questions of fact. In this regard the learned counsel has cited:
(a) Lal Muhammad v. District Judge, 1986 SCMR 827;
(b) Khalilur Rehman v. Mst. Radhi Bai 1985 CLC 142;
(iv) In respect of the argument of Mr. Khalid Hameed that the answering respondents have not filed a counter-affidavit to the affidavit filed by Mr. Zubair Elahi, the grandson of the petitioner Mr. Muhammad Farogh Naseem has submitted that since Mr. Zubair Elahi is not a party to the present proceedings his affidavit could not be filed without prior permission of the Court. He has further submitted that the listed application and affidavit of the petitioner were answered by the counter affidavits filed by the answering respondents which was in turn contested by two rejoinders submitted by the petitioners. The Court could not therefore entertain a further affidavit which did not arise out of any pleadings, the circle of pleadings having been completed. In any event, Mr. Muhammad Farogh Naseem has submitted while relying upon Rahim Bux v. Additional Settlement Commissioner, 1986 CLC 1008 that questions of fraud could not be established through unrebutted pleadings or affidavits and the same have to be established independently;
(v) The last submission advanced by Mr. Muhammad Farogh Naseem is that there is no inconsistency in the counter-affidavits of respondent No.6 and M/s. Jawaid Siddiqui/Abid Shirazi.
Nowhere in the counter affidavit filed by the respondent No.6 it has been averred that the decision to withdraw/compromise was taken at the spur of the moment.
6. The above contentions advanced by the learned counsel for respondent No.6 carry considerable force. It is now settled law in our country that a counsel appearing for a client has the power, inter alia, to compromise and withdraw proceedings even without specific instructions to do so. In the cases cited, in particular the case of Mobile Eye Service v. Director, Social Welfare a Division Bench of this Court has categorically held that compromises entered by counsel on behalf of clients cannot be set aside except on grounds of fraud which has to be clearly established. In the present case the petitioners have not been able to make out a clearly established case of fraud, collusion or misrepresentation the three terms being synonymous: see 1988 CLC 2037, 1991 CLC 553 and 1992 CLC 980 against M/s. Jawaid Siddiqui or Abid Shirazi, Advocates. On petitioner's own showing, as pointed out by Mr. Muhammad Farogh Naseem in paragraphs 8 and 10 of the affidavit in support to the listed application, the allegations are neither itemized nor particularized with precision or specification. Mr. Khalid Hameed in reply to the arguments of Mr. Muhammad Farogh Naseem has tried to contend that the cases relied upon by the latter cannot be made applicable to civil cases as the case-law clearly pertains to criminal cases. Such contention is devoid of any force as the cases cited were decisions in civil matters. In any event, fraud per se is a criminal or quasi-criminal matter requiring strong independent evidence, itemized, specified particulars, whether arising in a civil or criminal case. Mr. Khalid Hameed's insistence that the affidavit of Zubair Elahi has to be accepted as the true version as the same has not been controverted is also misplaced as fraud has to be established independently by the petitioner and not upon uncontroverted pleadings.
Eventually, the objection of Mr. Khalid Hameed that there is inconsistency between the counter- affidavits of respondent No.6 and Jawaid Siddiqui Abid Shirazi is also not correct. Paragraph 4 of the counter-affidavit filed by respondent No.6 does not spell out that the decision to withdraw/compromise the petition was taken at the spur of the moment. The relevant part of the said counter-affidavit is reproduced as follows:--- "4. After examining these documents the advocate for the petitioner on 24-6-1996 made an oral statement in Court that he could not press the petition if no encroachment on open space towards the petitioner's plot was made and the limit shown in the composition regularization plan was not encroached."
The above gives no idea of the fact that the decision to withdraw/compromise was taken at the spur of the moment.
7. In result we dismiss C.M.A. 2629/96 as devoid of any merit. Accordingly order of this Court dated 24-6-1996 disposing of the main petition remains in the field with the result that the ad interim order operating after 24-6-1996 also stands vacated.
8. Before parting we may point out that Mr. Khalid Hameed in the end has also tried to argue that the very commercialization of the plot was illegal. Although this fact has also been replied by Mr. Muhammad Farogh Naseem, we had pointed out to both the learned counsel that such fact pertained to merits of the case which could not be gone into till such time C.M.A. No.2629/96 was first decided in petitioner's favour. Following Mobile Eye Services v. Director Social Welfare and Kamaruddin Shahwani v. Ahmed Muneer Naswatty 1993 MLD 1341 we would eventually observe that the petitioner may if desired by her proceed for professional misconduct against her counsel, while the present order shall have no bearing on those proceedings which shall require proof and evidence independently.